235 A.D. 129 | N.Y. App. Div. | 1932
Bridgeman & Holtzman, contractors, entered into a contract with Michael and Mary Gondek, the owners of certain property in Hastings-on-Hudson, N. Y., to erect for them a structure at a specified price. The contractors claimed to have performed their contract and to have done certain extra work, for which they charged. The owners paid the contractors certain sums, but a dispute arose with respect to an additional claimed amount of $6,157.03.
The contract contained a clause providing for arbitration proceedings in the event of a dispute. Recourse thereto was had. The arbitration proceeding had a somewhat checkered career and met with much delay. There finally eventuated an award in favor of the contractors. The contractors moved to confirm the award and the owners moved to vacate it. The Special Term granted the motion of the contractors and denied the motion of the owners. An order was accordingly entered, and pursuant thereto a judgment was entered in favor of the contractors. The owners appeal from the order and judgment and assert that the award should be set aside: (1) Because of obvious bias of the umpire; (2) because the umpire was guilty of alleged misbehavior requiring the vacating of the award; (3) because the entire proceeding was void because of a failure of the arbitrators to take their oaths.
(1) As to the owners’ claim of bias. An examination of the record herein discloses that the arbitration proceedings were conducted in a manner which does not indicate bias, as a matter of law.
(3) The owners claim that the proceeding was void because the arbitrators did not take the oath prescribed by section 1452 of the Civil Practice Act. That section requires that the oath must be taken unless it is waived by a written consent of the parties to the submission or their attorneys. The provision requiring a written consent to the waiver of an oath by an arbitrator is a rule of evidence. (Hinkle v. Zimmerman, 184 N. Y. 114, 116.) It is the exclusive means of proving a waiver where the fact of waiver is in dispute. It is not the exclusive means of proving a waiver where the fact of waiver is not in dispute. In the case at bar the oath of each arbitrator, as a matter of substance, is conceded to have been waived. The form in which this undisputed fact of waiver appears in this record is due to the act of the owners’ representative. All the stipulations of waiver noted in the record were put in that form by the owners’ representative, FitzGerald. The owners are, there
All that transpired before the arbitration body herein was in one continuing proceeding. This observation is made because of the claim that when Arbitrator Wise died and Arbitrator Cortright was substituted, the stipulation to waive the statutory oath was limited to Cortright. A corresponding waiver had been made previously with respect to Arbitrator Miller and Umpire Henderson.
Accordingly, the order and judgment should be affirmed, with costs.
Present- — Lazansky, P. J., Young, Kapper, LIagarty and Carswell, JJ.
Order and judgment unanimously affirmed, with costs.